Dismissal: Telling the Employee
27 November 2013
If an employee's solicitor informs her of her dismissal a day before the employee reads a dismissal letter, is the effective date of termination the date that the solicitor tells her?
Yes, held the EAT in Robinson v Fairhill Medical Practice .
Daniel Barnett reports:
The Claimant did not attend a disciplinary hearing and was communicating with her employer through a solicitor due to illness. The employer emailed the solicitor on 6th July to inform her that the Claimant was to be summarily dismissed; the solicitor told the employee of the decision on 7th July; the employee read the dismissal letter on 8th July. At a pre-hearing review, an employment tribunal held that the effective date of termination was 7th July, so the claim for unfair dismissal was struck out as out of time as the claim was presented a day late on 7th October. The EAT considered the Supreme Court's decision in Gisda Cyf v Barratt, that dismissal is effective when it is communicated to an employee or she has a reasonable opportunity to know of it, and held that communication of dismissal through a third party suffices, so, as the effective date of termination was 7th July, the Claimant's appeal failed. However, the EAT did uphold the appeal against the decision to dismiss the Claimant's disability discrimination claim as out of time, noting that the fault of the Claimant's adviser ought not to be held against her as a factor on whether it was just and equitable to extend time. The EAT found that the time should be extended and substituted its own decision for that of the employment tribunal.
Unfair Dismissal: Ill-Health Absence
5 December 2013
What is the critical question to be decided in dismissals on grounds of ill-health?
"Whether any reasonable employer would have waited longer before dismissing the employee", says the Court of Session in BS v Dundee City Council .
Daniel Barnett’s Employment Law Bulletin summarises the case:
The Court of Session stated that in a case where an employee has been absent from work for some time owing to sickness, the following issues would need to be specifically addressed: Whether the employer could be expected to wait any longer and, if so, for how much longer. Relevant factors could include whether the employee has exhausted her sick pay, whether the employer was able to call on temporary staff, and the size of the organisation. Whether the employee had been consulted with, whether her views had been taken into account, and whether such views had been properly balanced against the medical professional's opinion. Whether reasonable steps had been taken to discover the employee's medical condition and likely prognosis. It would not be necessary for the employer to pursue detailed medical examination as the decision to dismiss is not a medical question but a question to be answered in the light of the available medical advice.
CIPP Policy News Journal
16/04/2014, Page 127 of 519
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